2021 (11) TMI 244 - AT - Service Tax

Tribunal affirms service provider's entitlement to claim cenvat credit on goods used for taxable services

Principal Commissioner, CGST Delhi South Commissionerate Versus M/s. AST Telecom Solar (P) Ltd.

The Tribunal upheld the allowance of cenvat credit for disputed items like M.S. Angles, G.I. sheet, etc., used by the respondent in providing taxable ... CENVAT Credit - input services or not - items were used by the assessee in fabrication or for support of capital goods - M.S. Angles, G.I. sheet, Bolts, Shelter Cabins, Structures Cabins, Structure of Iron and Steels, M.S. Huts, fabricated and galvanized structures, etc. - HELD THAT:- It is an admitted fact that the respondent/assessee does not own the telecom towers. The respondent are only providing services of providing uninterrupted power for ensuring maximum uptime of the telecom towers, to ensure un-interrupted mobile services. For rendering such output services, the respondent has acquired the items under dispute for providing the output service. It is found that an output service provider under Rule 3 of CCR is entitled to take cenvat credit on all such goods without any distinction as to inputs or capital goods for rendering taxable output service. Further, the show cause notice is mis-conceived for raising the dispute on the inputs being not capital goods. There are no merit in this appeal by the Revenue and the same is dismissed - decided against Revenue. Issues:Whether the Adjudicating Authority and the Commissioner (Appeals) correctly allowed cenvat credit for items like M.S. Angles, G.I. sheet, Bolts, Shelter Cabins, etc., used by the respondent in providing taxable output service.Analysis:The respondent, a service provider in the telecom industry, offered 'Hybrid Power Solutions' for maintaining telecom towers. During an audit, it was alleged that the respondent wrongly availed cenvat credit on items like M.S. Angles, G.I. sheet, etc. The Revenue issued a show cause notice disallowing credit of Rs. 45,25,425 under Rule 2(a) of CCR, stating these items did not qualify as capital goods. The Asstt. Commissioner noted the respondent's business model, where they maintained towers to ensure maximum uptime, and used the disputed items in providing output services. The respondent argued that these items were essential for constructing/fabricating structures for solar panels, qualifying as capital goods. Citing Rule 2(a)(A)(iii) of CCR and a Tribunal ruling, the Asstt. Commissioner dropped the demand.The Revenue, dissatisfied, appealed to the Commissioner (Appeals) who rejected the appeal. The Commissioner agreed with the Tribunal's findings, noting that the disputed items were not immovable structures and thus eligible for cenvat credit. The Revenue further appealed to the Tribunal, citing a Supreme Court ruling on CBEC circulars' binding nature and the definition of capital goods under Rule 2(a)A of CCR. They referenced a Larger Bench ruling on pre-fabricated towers and shelters, arguing these items did not qualify as capital goods. The Tribunal observed that the disputed items were acquired by the respondent for providing output services and were eligible for cenvat credit under Rule 3 of CCR, dismissing the Revenue's appeal.In conclusion, the Tribunal upheld the allowance of cenvat credit for the disputed items, emphasizing that the respondent, as an output service provider, was entitled to credit on goods used for rendering taxable services. The Tribunal dismissed the Revenue's appeal, affirming the respondent's entitlement to the benefit in accordance with the law.